Possession in jurisprudence

Possession is very difficult to define in English Jurisprudence. But it very important topic. Human life and society would become impossible without retention and consumption of material and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the first to claim possession. It is not just acquisition of things but it is continuing claim for use of them. It may be legal or illegal.
How the possession is acquired:
Following are some points which can be referred to acquire or loss the ownership:

  • Possession itself is evidence being owner. Pen in my hand is evidence being owner, regardless legally or illegally.
  • The person in possession is presumed to be the owner. A house in my possession is presumed my ownership along-with all the things lying in it.
  • Anything can be held wrongfully or by fraud.
  • Long possession of twelve years confers the title in property, which may belong to others. When a title is conferred to another even without ownership is acquisition of possession.

Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does not cover incorporeal possession. Possession is different from ownership but normally possession and ownership lie together.
How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment etc. is the general mode of acquisition of possession. Possession is of two kinds, i.e., possession in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs. Law something presumes which may not actually exist. Normally possession in law and possession in fact exist in a person but it may vary.

  • Possession in fact or de facto:
    It means the possession, which physically exists in term of control over it. It can be seen landlord and tenant where tenant holds possession of house physically or de facto, but it is not possession in law or de jure.
  • Possession in law or de jure:
    It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is also called constructive possession. A servant may possess car, but in the eyes of law, it is possession of master. Possession of bailor through bailee is de jure possession on the part of bailor.

Corporeal and incorporeal possession:

Corporeal possession is the possession of a material or tangible objects, thus it is continuing exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object. Thus it is continuing exercise of a claim on the use of non-material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.

  • Animus is the intent or mental condition or activity or claim of exclusive use of the thing possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend to exclude the owner or subject of the owner. Animus may be legal or illegal. The only test is whether the man in possession intends to exclude others or not. General intent is enough to constitute possession. All books in library, all fishes in net, all sheep in flock, are subject of intent whether in knowledge or not, thus possessio completes.
  • Corpus is second element, which is essential and completes possession. It is objective part of possession. Both animus and corpus are necessary for possession.
    The intent to exclude to others from interfering with the object possessed must be evidenced by physical facts. If there is no action then no intention is expressed. Pen in my pocket, ring on my finger, or goods in my home, are corpus of my possession of each of these.

Completion of possession:

  • Power of possession: It shows possession. Books or watch in my hand excludes others thus possession is complete. Things under lock and key are also possession.
  • Presence of possession: A person may be feeble and unable to exclude other but his presence may command respect. Cash in the hand of child is possession.
  • Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.
  • Continuing use: I use pen continuously, read book continuously, use of transport continuously, is possession.
  • Customs: In some localities people are not allowed to interfere to other things even presence is not there, like in Saudi Arabia where people leave their shops remain open and go to offer prayer and no interference is allowed. It is possession even in absence.
  • Respect of rightful claim: In law-abiding societies people do not interfere in the right of other and rightful claim generally obtain security from general acquisition.

Res nullius

Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who finds lost goods, while passing on road, e.g., a wallet, being first finder, he has good title against the whole world except the true owner, even if it is found on another person property without committing trespass. This is the rule. Any other person who looks at finder of lost goods cannot demand his share from lost goods.If a customer finds a lost wallet while shopping in a store which is not identifiable, can retain till reasonable time to wait its true owner. He is obliged to bring this matter into the knowledge of shopkeeper and give him his own address. If true owner did not come till reasonable time, he will hold title. There are many other things which have no owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal, provided these things are found in way, without committing trespass. Precious stone cannot be held from the area specified by government. Bird or fish cannot be hunt from the area of property holder. Things cannot be hold from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:

  • Owner of the property on which the thing is found is in possession of the thing itself as well as property, or
  • If the finder is servant or agent then master or principal has title, or
  • Wrongful act does not constitute possession. Trespass is not allowed.

Natural resources in economic zone like water, sea, land etc. belong to government. If treasure comes out from others property will also belong to government.

Kinds of corporeal possession:

Immediate possession means direct or proximate possession without agency and mediates possession means in between or remote possession. It is acquired with agency.

  • A being a servant holds something for his master B. A has immediate possession while possession of B is mediate.
  • Where both claim possession, e.g., tenant and landlord.
  • In case of bailment, pledge or mortgage, both have claim.

A has exclusive right of possession on his land while right of way over his land is concurrent.

Acquisition of possession:

Possession is acquired when both the animus and corpus are acquired:

  • By taking: When someone takes anything, he has possession. It may either be rightful or wrongful possession.
  • By delivery: The thing is acquired by delivery with consents of previous possessor.
  • Actual deliveryActual delivery is a kind in which goods are delivered while constructive delivery is the rental or sold goods.

Ownership in jurisprudence

Jurists have defined ownership in different ways. All of them accept the right of ownership as the complete or supreme right that can be exercised over anything. Thus, according to Hibbert ownership includes four kinds of rights within itself.

  • Right to use a thing
  • Right to exclude others from using the thing
  • Disposing of the thing
  • Right to destroy it.

Austin’s definition
Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.

  • Indefinite User
  • Unrestricted Disposition
  • Unlimited Duration

The abolition of Zamindari system India , the abolition of privy purses, nationalization of Bank etc. are some example of the fact that the ownership can be cut short by the state for public purpose and its duration is not unlimited.
Austin’s definition has been followed by Holland. He defines ownership as plenary control over an object. According to him an owner has three rights on the subject owned

  • Possession
  • Enjoyment
  • Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus, the criticism levelled against Austin’s definition would apply to that given by Holland in so far as the implication of the term “plenary control” goes.
Salmond’s Definition:
According to the Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in here resides in an individual. Salmond’s definition thus point out two attributes of ownership:

  • Ownership is a relation between a person and right that is vested in him
  • Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which may be broadly classed under two heads,viz,.
Original mode
Derivative mode
The original mode is the result of some independence personal act of the acquire himself. The mode of acquisition may be three kinds

  • Absolute when a ownership is acquired by over previously ownerless object
  • Extinctive, which is where there is extinctive of previous ownership by an independence adverse act on the part of the acquiring. This is how a right of easement is acquiring after passage of time prescribed by law.
  • Accessory that is when requisition of ownership is the result of accession. For example, if three fruits, the produce belongs to the owner unless he has parted with to the same. When ownership is derived from the previous version of law then it is called derivate acquisition. That is derived mode takes place from the title of s prior owner. It is derived either by purchase, exchange, will, gift etc.Indian Transferee Acts of property rules for the transfer of immovable property, Sale of goods Acts for the transfer of property of the firm and the companies Act for the transfer of company property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:

  • The right to manage
  • The right to posses
  • The right to manage
  • The right to capital
  • The right to the income

CHARACTERISTICS OF OWNERSHIP

An analysis of the concept of ownership, it would show that it has the following characteristics: Ownership ma either be absolute or restricted, that is, it may be exclusive or limited. Ownership can be limited by agreements or by operation of law.The right of ownership can be restricted in time of emergency. An owner is not allowed to use his land or property in a manner that it is injurious to others. His right of ownership is not unrestricted.The owner has a right to posses the thing that he owns. It is immaterial whether he has actual possession of it or not. The most common example of this is that an owner leasing his house to a tenant. Law does not confer ownership on an unborn child or an insane person because they are incapable of conceiving the nature and consequences of their acts. Ownership is residuary in character. The right to ownership does not end with the death of the owner; instead it is transferred to his heirs. Restrictions may also be imposed by law on the owner’s right of disposal of the thing owned. Any alienation of property made with the intent to defeat or delay the claims of creditors can be set aside.

KINDS OF OWNERSHIP

There are many kinds of ownership and some of them are corporeal and incorporeal ownership, sole ownership and co-ownership, legal and equitable ownership, vested and contingent ownership, trust and beneficial ownership, co- ownership and joint ownership and absolute and limited ownership.

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a machine is corporeal ownership. Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction between corporeal and incorporeal ownership is connected with the distinction between corporeal and incorporeal things. Incorporeal ownership is described as ownership over tangible things. Corporeal things are those which can be perceived and felt by the senses and which are intangible. Incorporeal ownership includes ownership over intellectual objects and encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two persons at the same time. The relation between the two owners is such that one of them is under an obligation to use his ownership for the benefit of the other. The ownership is called beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye of law the trustee represents his beneficiary. In a trust, the relationship between the two owners is such that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee and his ownership is trust ownership. The latter is called the beneficiary and his ownership is called beneficial ownership.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable ownership is that which proceeds from the rules of equity. In many cases, equity recognizes ownership where law does not recognize ownership owing to some legal defect. Legal rights may be enforced in rem but equitable rights are enforced in personam as equity acts in personam. One person may be the legal owner and another person the equitable owner of the same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right. The ownership of an equitable mortgage is different from the equitable ownership of a legal mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act, a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the trust property itself. However, he has a right against the trustees to compel them to carry out the provisions of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is already perfect. It is contingent ownership when the title of the owner is yet imperfect but is capable of becoming perfect on the fulfillment of some condition. In the case of vested ownership, ownership is absolute. In the case of contingent ownership it is conditional. For instance, a testator may leave property to his wife for her life and on her death to A, if he is then alive, but if A is dead to B. Here A and B are both owners of the property in question, but their ownership is merely contingent. It must, however, be stated that contingent ownership of a thing is something more than a simple chance or possibility of becoming an owner. It is more than a mere spes acquisitionis. A contingent ownership is based upon the mere possibility of future acquisition, but it is based upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as much possible as sole ownership. When the ownership is vested in a single person, it is called sole ownership; when it is vested in two or more persons at the same time, it is called co-ownership, of which co-ownership is a species. For example, the members of a partnership firm are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to three essential rights, namely

  • Right to possession
  • Right to enjoy the property
  • Right to dispose

Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its two chief kinds in English law are distinguished as ownership in common and joint ownership. The most important difference between these relates to the effect of death of one of the co-owners. If the ownership is common, the right of a dead man descends to his successors like other inheritable rights, but on the death of one of two joint owners, his ownership dies with him and the survivor becomes the sole owner by virtue of this right of survivorship.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a person without any restriction, the ownership is absolute. But when there are restrictions as to user, duration or disposal, the ownership will be called a limited ownership. For example, prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership over the estate because she held the property only for her life and after her death; the property passed on to the last heir or last holder of the property. Another example of limited ownership in English law is life tenancy when an estate is held only for life.

Legal Rights jurisprudence notes

There can be on duty without a right and According to Hibbert “a right is one person’ capacity of obliging others to do or forbear by means not of his own strength but by the strength of a third party. If such third parts is God, the right is Divine. If such third parts is the public generally acting though opinion, the right is moral. If such third parts is the stale acting directly or indirectly, the right is legal.”

Definition Of Legal Right

The term legal right has been used in two senses:
Restricted Or Popular Sense:
According to Gray:A legal is that powers which a man has to take a person or person do or refrain form doing a certain act or certain acts, so far as the power arises form society imposing a legal duty upon a person or persons.
Wider Sense:
In a wide sense, legal right include any legally recognized interest whether it corresponds to a legal duty or not. It is an addition or benefit conferred upon a person by a rule of law.

Kinds Of Legal Rights:

Following are the kinds of legal rights:

  • Perfect right
  • Imperfect right
  • Real And Personal Rights
  • Rights In Rem And Rights In Personam
  • Proprietary And Personal Rights
  • Inheritable And Uninheritable Rights
  • Rights In Repropria And Rights In Re Aliena
  • Principal And Accessory Rights
  • Legal And Equitable Rights
  • Primary And Secondary Rights
  • Public And Private Rights
  • Vested And Contingent Rights
  • Servient And Dominant Rights
  • Municipal And International Rights
  • Rights At Rest And Rights In Motion
  • Ordinary And Fundamental Rights
  • Jus Ad Rem

Perfect right:

According to salmond, a perfect right is one which corresponds to a perfect duty I .e., which is enforced by law.
Example:
A contract specically enforceable through the Court of law is an example of perfect right.

Imperfect right:

An imperfect right is that which is recognized by law but cannot be enforced by law due to some impediment. These may be turn into perfect rights.

  • Positive right:
    A positive right corresponds positive duty and the person subject to the duty is bound to do something.
  • Negative right:
    Negative right corresponds to negative duties. The enjoyment of negative rights is complete unless such interference takes place.

Real And Personal Rights:

  • Real right:
    According to salomond, a real right corresponds to a duty imposed upon persons in general. It available against whole word. Real rights are generally a negative rights as the duties which can be expected form the whole world are of a negative character.
    Example:
    I have a right to be deprived of my life is a real right as it is available against the whole world.
  • Personal right:
    A personal right corresponds to a duty imposed upon determinate individuals. It against a particular person. Personal rights are generally positive right as it imposes a duty on a particular person to do something.
    Example:
    I have a personal right to receive compensation form any individual who is any harms me.

Rights In Rem And Rights In Personam:

  • Rights in Rem:
    It is derived form the Roman term action in Rem” . It is available the whole world Examples are rights of ownership and possession. My right of possession and ownership is protected by law against all those who those may interfere with the same.
  • Rights in Personam:
    It is derived form the Roman term “ action in personam,” Right in personam corresponds to duty imposed upon determinate persons.
    Example:
    Rights under a contract are right in Personam as the parties to the contract alone are bound by it.

Proprietary And Personal Rights:

  • Proprietary Right:
    The proprietary rights of a person include his estate, his assets and his property in many forms. They have some economic or monetary value. They possess both judicial and economic importance.
    Example:
    The right to debt, the right to goodwill etc.
  • Personal right:
    Personal right pertain to man, s status or standing in the law. They promote the man, s well being. Personal rights possess merely judicial importance.
    Example:
    Right to life, reputation etc are personal rights.

Inheritable And Uninheritable Rights:

  • Inheritable Rights:
    Inheritable rights are those which survives its owners.
    Example:
    ‘A’ dies leaves his property him ‘B’ his legal heir becomes owner of such property. This is an inheritable right.
  • Uninheritable right:
    A right is uninheritable if it dies with its owners e. g. personal rights die with its owner and cannot be inherit.

Rights In Repropria And Rights In Re Aliena:

  • Rights in Re Propria:
    Rights in Re propria are rights in one, s own property. These are complete rights to which other right can be attached.
    Example:
    The owner of a chattel has a right in re propria over it.
  • Right in Re aliena:
    Rights is Re aliena are rights over the property of another person. These rights derogate form the rights of another person and add to the rights of their holder.
    Example:
    My right of way across the land another person is a right re aliena.

Principal And Accessory Rights:

  • Principal rights
    Principal rights exist independently of other rights. Accessory rights are appurtenant to other rights and they have a beneficial on the principal rights.
    Example:
    ‘X’ owes money to ‘Y’ and he executes a mortgage deed in favour of ‘Y’. the debt is the principal right and the security in the form of mortgage is the accessory right.

Legal And Equitable Rights:

  • Legal Rights:
    Legal rights are those which were recognized by common Law Court e. g., right to vote etc.
  • Equitable Rights:
    Equitable rights are those which were recognized by the Court of chancery.
    Example:
    The right of the mortgagor to redeem the property is regarded as a creation of the Courts of equity and is an equitable right knows as the equity of redemption.

Primary And Secondary Rights:

  • Primary Rights:
    Primary rights are also called antecedent, sanctioned or enjoyment rights. These are those rights which are independent of a wrong having been committed. They exist for own sake. They are antecedent to be wrongful act or omission.
    Example:
    Right of reputation, Right to life etc.
  • Secondary Rights:
    Secondary rights are also called sanctioning, restitutory or remedial rights. Secondary rights are a part of the machinery provided by the state of the redress of injury done to the primary rights. Their necessity arises on account of the fact that primary rights are very often violated by the persons.
    Example:
    Rights to obtain compensation for defamation to person.

Public And Private Rights: Public rights:

  • Public rights:
    A public right is possessed by every member of the public. It is between a state and the private individual e. g. , right to vote etc.
  • Private right:
    A private right is concerned only with the individuals. Both the parties connected with the right are private persons e.g., contract entered into by two individuals.

Vested And Contingent Rights:

  • Vested right:
    A vested is a right in right in respect of which all events necessary to vest it completely in the owner have happened. No other conditions remains to be satisfied.
    Example:
    If a valid deed of transfer is executed by ;A; in favour of ‘B’, ‘B’ acquires a vested right.
  • Contingent right:
    According to paton when part of the in vestitive acts have occurred, the right is contingent until the appening of all the facts on which the title depends.
    Example:
    ‘A’ executes a deed in favour of ‘B’ according to which he entitles to the possession of certain property when attains the age of 21, the right is contingent right and it will be vested only when he attains the age of 21.s

Servient And Dominant Rights:

A servient right is one which is subject to an encumbrance. The encumbrance which derogates form it may be contrasted as dominant.
Example:
“X” as the owner of certain house a right of way over the land of ‘Y’ , his neighbor. The house of ‘X’ is the dominant heritage and ‘X’ is the dominant owner. The house of ‘Y’ is the servient heritage and ‘Y’ is the servient owner.

Municipal And International Rights:

  • Municipal rights:
    Municipal right are conferred by the law of a country, it is enjoyed by the individuals living in a country.
  • International rights:
    International rights are conferred by international law. The subject of the International rights are the persons recognized as such by International law.

Rights At Rest And Rights In Motion:

According to Holland, when a right is stated with reference to its ‘orbit’ and its “ infringement’, it is a right at rest. “Orbit’ means the extent of advantages conferred by such right and infringement means an act which interference with the enjoyment of those advantages. Causes by which rights are either connected or disconnected with persons are discussed under rights in motion.

Ordinary And Fundamental Rights:

Some rights are ordinary and some are fundamental rights. The distinction between the two lies that fundamental rights are often guaranteed by the onstitution i. e., right to life, liberty etc.

Jus Ad Rem:

A jus ad rem is a right to right. It is always a right in personam.
Example:
If ‘A’ sell his house to ‘B’. ‘B’ acquires a right against ‘A’ to have the house transferred to himself.

Conclusion:

To conclude, I can say, that legal rights are those which are conferred by the state on certain individuals and imposes corresponding duties on others. It is enforced by the physical force of the state. It is been classified into different kinds according to their scope by various authors.

Custom in jurisprudence

Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.

There is no doubt about the fact that custom is an important source of law. Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:
Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs may further be divided into the following categories:

  • Legal Custom:
    Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into the following two types:
    • General Customs:
      These types of customs prevail throughout the territory of the State.
    • Local Customs:
      Local customs are applicable to a part of the State, or a particular region of the country.
  • Conventional Customs:
    Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance an agreement between landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. Acustom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the customary practice of child marriage has been declared as an offence.

Precedent in Jurisprudence

JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common law countries which follow the English legal system. In most of the developed legal systems, judiciary is considered to be an important organ of the State. In modern societies, rights are generally conferred on the citizens by legislation and the main function of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the legislations and prevailing custom but while doing so, they also play a creative role by interpreting the law. By this exercise, they lay down new principles and rules which are generally binding on lower courts within a legal system. It is important to understand the extent to which the courts are guided by precedents. It is equally important to understand what really constitutes the judicial decision in a case and which part of the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):
Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value.

Legislation in jurisprudence

In modern times, legislation is considered as the most important source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means “to make” or “set”. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The expression ‘legislation’ has been used in various senses. It includes every method of law-making. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament is considered as sovereign.

Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is subordinate to the supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority. Subordinate legislation further can be classified into the following types

Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous body, is conferred with the power to make rules and regulation, the laws made by such body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated companies etc. fall in this category of legislation.

Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their administrative procedures. The Supreme Court and High Courts have been conferred with such kinds of power to regulate procedure and administration.

Local laws:
In some countries, local bodies are recognized and conferred with the law-making powers. They are entitled to make bye-laws in their respective jurisdictions. The rules and bye-laws enacted by them are examples of local laws.

Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them are known as colonial laws. For a long time, However, as most countries of the world have gained independence from the colonial powers, this legislation is losing its importance and may not be recognized as a kind of legislation.

Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in one authority or it may be distributed among the various organs of the State. In most of the modern States, sovereignty is generally divided among the three organs of the State. The three organs of the State namely legislature, executive and judiciary are vested with three different functions. The prime responsibility of law-making vests with the legislature, while the executive is vested with the responsibility to implement the laws enacted by the legislature. However, the legislature delegates some of its law-making powers to executive organs which are also termed delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare and modern states, the amount of legislation has increased manifold and it is not possible for legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental part of the legislation and wide discretion has been given to the executive to fill the gaps. This increasing tendency of delegated legislation has been criticized. However, delegated legislation is resorted to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore, delegated legislation is sometimes considered as a necessary evil.

The Source of Law in jurisprudence

Sources of law mean the sources from where law or the binding rules of human conduct originate. In other words, law is derived from sources. Jurists have different views on the origin and sources of law, as they have regarding the definition of law. As the term ‘law’has several meanings, legal experts approach the sources of law from various angles.For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Natural law school considers nature and human reason as the source of law, while theologians consider the religious scripts as sources of law. Although there are various claims and counter claims regarding the sources of law, it is true that in almost all societies, law has been derived from similar sources.

CLASSIFICATION OF SOURCESOF LAW

Salmond, an English Jurist, has classified sources of law into the following categories:
Formal Sources of Law:
These are the sources from which law derives its force and validity. Alaw enacted by the State or Sovereign falls into this category.
Material Sources of Law:
It refers to the material of law. In simple words, it is all about the matter from where the laws are derived. Customs fall in this category of law.
However, if we look around and examine the contemporary legal systems, it may be seen that most legal systems are based on legislations. At the same time, it is equally true that sometimes customs play a significant role in the legal system of a country. In some of the legal systems, court decisions are binding as law.
There are three major sources of law can be identified in any modern society are as follows:

  • Custom
  • Judicial precedent
  • Legislation

CUSTOM AS ASOURCE OF LAW

Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.

There is no doubt about the fact that custom is an important source of law. Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:
Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs may further be divided into the following categories:

  • Legal Custom:
    Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into the following two types:
    • General Customs:
      These types of customs prevail throughout the territory of the State.
    • Local Customs:
      Local customs are applicable to a part of the State, or a particular region of the country.
  • Conventional Customs:
    Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance an agreement between landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. Acustom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the customary practice of child marriage has been declared as an offence.

JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common law countries which follow the English legal system. In most of the developed legal systems, judiciary is considered to be an important organ of the State. In modern societies, rights are generally conferred on the citizens by legislation and the main function of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the legislations and prevailing custom but while doing so, they also play a creative role by interpreting the law. By this exercise, they lay down new principles and rules which are generally binding on lower courts within a legal system. It is important to understand the extent to which the courts are guided by precedents. It is equally important to understand what really constitutes the judicial decision in a case and which part of the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):
Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value.

LEGISLATION AS ASOURCE OF LAW

In modern times, legislation is considered as the most important source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means “to make” or “set”. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The expression ‘legislation’ has been used in various senses. It includes every method of law-making. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament is considered as sovereign.

Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is subordinate to the supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority. Subordinate legislation further can be classified into the following types
Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous body, is conferred with the power to make rules and regulation, the laws made by such body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated companies etc. fall in this category of legislation.

Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their administrative procedures. The Supreme Court and High Courts have been conferred with such kinds of power to regulate procedure and administration.

Local laws:
In some countries, local bodies are recognized and conferred with the law-making powers. They are entitled to make bye-laws in their respective jurisdictions. The rules and bye-laws enacted by them are examples of local laws.

Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them are known as colonial laws. For a long time, However, as most countries of the world have gained independence from the colonial powers, this legislation is losing its importance and may not be recognized as a kind of legislation.

Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in one authority or it may be distributed among the various organs of the State. In most of the modern States, sovereignty is generally divided among the three organs of the State. The three organs of the State namely legislature, executive and judiciary are vested with three different functions. The prime responsibility of law-making vests with the legislature, while the executive is vested with the responsibility to implement the laws enacted by the legislature. However, the legislature delegates some of its law-making powers to executive organs which are also termed delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare and modern states, the amount of legislation has increased manifold and it is not possible for legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental part of the legislation and wide discretion has been given to the executive to fill the gaps. This increasing tendency of delegated legislation has been criticized. However, delegated legislation is resorted to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore, delegated legislation is sometimes considered as a necessary evil.